93 Cal. 153 | Cal. | 1892
Quo warranto ex relatione T. J. Parsons to show by what warrant defendant exercises the office of fire commissioner.
The facts —about which there is no dispute — are as follows: Prior to 1878 the board of fire commissioners of the city and county of San Francisco consisted of five persons, chosen by the qualified voters of said city and county at general elections. On March 28, 1878, an act was passed by the legislature, and approved by the governor, which provided for a board of fire commissioners consisting of five members, three of whom should be appointed by the board of supervisors, one by the judge of the municipal criminal court, and one by the judge of the county court. The terms of three of the five members of the board elected under the act of 1874 expired on the first Monday of December, 1879, and the terms of the other two members expired on the first Monday of December, 1881. The last-named act provided that the judge of the municipal court and the judge of the county court should each appoint one commissioner in place of one of the three commissioners elected under the act of 1874. On the first Monday in December, 1879, the defendant was appointed a member of the board by the judge of the county court, and on the same day Edward Flaherty was appointed a member of the board by the judge of the municipal court. On December 15, 1879,
We are unable to tell from the respondent’s brief whether he claims that the act of 1878 is still in force or not, but his action is based upon the assumption that it is still in force; if it is not, certainly he has no claim to the office, —the office fell with the act.
Questions involving the same principles as those under discussion were determined in People w. Hammond, 66 Cal. 654. Under the act of April 1, 1878, the respondent in that case, and two others, were appointed by certain district court judges, named in the act, police commissioners for the city and county of San Francisco. By the constitution of 1879 the judges of the courts named were superseded, but the powers given to them by the act referred to were not vested in any other person or tribunal. It was claimed by the relator in that case, as it is by the relator here, that under section 8, article V., and section 16, article XX., of the constitution, the office became vacant at the expiration of four years from the date of the defendant’s appointment, and that
It has been held that an officer will hold over until his successor is qualified, although the constitution says he is ineligible for a second term. His holding over is simply a prolongation of the old term. (Carr v. Wilson, 3 L. R. A. 68.) It is in no sense a new term. During the time he holds over his salary cannot be increased, and he and his sureties are liable on his official bond for all his acts until his successor is elected or appointed and qualified. (State v. Smith, 87 Mo. 160.) Of course, the language of the statute or constitution may show an intention to fix and limit precisely the tenure of an officer, so that at a particular time his authority will cease, although an absolute vacancy and absence of authority
It is claimed that section 16 of article XX. of the constitution makes it unlawful to occupy an office created by the legislature for a longer period than four years. That section provides that “ when the term of any officer or commissioner is not provided for in this constitution, the term of such officer or commissioner may be declared by law; .... but in no case shall such term exceed four years.” This question, also, was passed upon in People v. Hammond, 66 Cal. 654, and requires no further notice. See also State v. Harrison, 113 Ind. 434, where the purpose and effect of a similar provision is discussed. This section is a re-enactment of section 7, article XI., of the old constitution, which was held not to forbid a holding over until a successor has been chosen and has qualified, but merely to limit the incumbent’s term by election or appointment. (People v. Stratton, 28 Cal. 388; People v. Tilton, 37 Cal. 614.) As the section is substantially the same as it was in the former constitution, it must be construed in the same way. (Sharon v. Sharon, 67 Cal. 189.)
The judgment is reversed, with directions to the court below to enter judgment on the findings in favor of appellant.
Harrison, J., and Garoutte, J., concurred.